The proliferation of social media has altered the litigation landscape. Most attorneys on both sides of the v. understand the implications of social media, particularly during the discovery stage. Nonetheless, the law governing social media and discovery is still in its infancy. The result is troublesome: practitioners encounter social media issues but the rules governing those scenarios are not entirely clear. One rule that is well established is the requirement that a legal hold be implemented for all relevant materials, including social media content. The failure to abide by this rule could be dire.
Take for example the recent decision from the Charlottesville Circuit Court in Virginia that imposed hefty sanctions on an attorney who ran afoul of the legal hold requirement. Allegedly, the attorney for a plaintiff in a wrongful death suit instructed his client to “clean up” his Facebook page. This is a big no-no. For the same reasons that a party may not alter evidence, a party must preserve all forms of relevant information including social media content when litigation is reasonably anticipated.
According to a local news outlet, the Virginia State Bar Disciplinary Board is investigating the attorney’s role in a 2010 lawsuit arising from an automobile fatality. During discovery, the plaintiff sent a Facebook message to his adversary’s attorney (mistake #1). That message permitted the defendant access to the plaintiff’s Facebook page. The defendant subsequently issued a document request targeting social media content. In response, the plaintiff’s counsel instructed the plaintiff to clean up his page (mistake #2). The plaintiff complied and deleted 16 photos (mistake #3).
Upon learning of the discovery violation, the court ordered the plaintiff and his counsel to pay $722,000 to the defendant’s attorney. The disciplinary proceedings are pending.
The laws governing the intersection between social media and discovery are relatively sparse. But one easy rule of thumb is to employ a legal hold on all relevant content as soon as you reasonably anticipate a lawsuit. Make no mistake: “relevant content” includes any and all social media sources. Practitioners should expect that their client’s social media profiles will be the target of discovery and therefore should instruct in writing that the client preserve these materials.